CHETRAMversusSTATE OF UTTARAKHAND

                       [2014] 4 S.C.R. 70


A                           CHETRAM
                                v.
                    STATE OF UTTARAKHAND
                (Criminal Appeal No. 543 of 2014)
                        MARCH 04, 2014
B
            [T.S. THAKUR AND C. NAGAPPAN, JJ.]

       PENAL CODE, 1860:

c       s.302 rlw s.34 - Murder - Two accused - One of them
  stabbed the victim resulting into his death - Conviction by
  courts below of both - Plea of appellant that no role was
  attributed to him in the crime - Held: No role was assigned to
  appellant in FIR or in statement u/s 161 by solitary eye-
D witness - His testimony before court stating that appellant
  caught hold of victim is an improvement over his statement
  in FIR and uls 161 CrPC - This creates a suspicion about
  overt act attributed to appellant - His involvement in the
  incident remains doubtful - Accordingly, appellant is entitled
E to benefit of doubt and, as such, acquitted.
       The appellant along with another was prosecuted for
  the murder of the brother of PW-1. In the written report,
  PW-1 stated that when the deceased was selling guavas
  on the roadside, A-1 and A-21appellant reached there. A-
F 1 stabbed the deceased and thereafter both of them fled
  away. PW-3 and PW-4 saw both the accused fleeing from
  the scene. The trial court convicted and sentenced both
  the accused u/s 302/34 IPC. The High Court affirmed the
  conviction and sentence.
G
       In the instant appeal, it was contended for the
  appellant that as the deposition of sole eye-witness, PW-
  1, in court was an improvement upon the information
  recorded in FIR and his statement made u/s 161 CrPC
                                70
      CHETRAM v. STATE OF UTTARAKHAND                   71


wherein he attributed no role to appellant, his conviction    A
was liable to be set aside.

    Allowing the appeal, the Court

     HELD: 1.1 PW2 and PW3 have not seen the
occurrence but have witnessed accused persons fleeing         B
away after the occurrence. Therefore, the solitary eye-
witness to the occurrence is PW1 and his testimony in
court is an improvement on the version given by him in
the FIR in which he has not attributed any overt act to
accused No.2 in the attack made on the deceased during        C
the occurrence. Further, no role was assigned to accused
no. 2 by PW1 in his statement given u/s 161 Cr.P.C. before
the Investigation Officer. For the first time in his
deposition before the court he has come out with the
version that accused N~.2 caught hold of the deceased         D
while the attack was made by accused No.1 on him
during the occurrence. Thus, there is a lurking suspicion
so far as the overt act of accused No.2 is concerned. It
is difficult to place any reliance on the testimony of PW1
as regards the involvement of the appellant in the            E
incident. [para 11] [75-G-H; 76-A-C]

  - Ani/ Prakash Shukla vs. Arvind Shukla 2007 (5) SCR
1053 = (2007) 9 SCC 513; ldrish Bhai Daudbhai vs. State of
Gujarat 2005 (1) SCR 885 = (2005) 3 SCC 277; and Baital       F
Singh v. State of U.P. (1990 Crl. L.J. 2091) - relied on.

    1.2 Though the prosecution, by adducing medical
evidence, has established that the deceased died of
homicidal violence, the involvement of the appellant in the
said incident remains doubtful and the benefit of doubt       G
has to· be given to him in the circumstances. Accordingly,
the conviction and sentence imposed on the appellant-
accused No.2 are set aside and he is acquitted of the
charge. [para 13-14] [76-E-F]
                                                              H
    72       SUPREME COURT REPORTS               [2014] 4 S.C.R.


A                         Case Law Reference:
         2007 (5) SCR 1053         relied on            para 11
         2005 (1) SCR 885          relied on            para 11
         1990 Crl. L.J. 2091       relied on             para 11
B
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 543 of 2014.
      From the Judgment and Order dated 09.07.2013 of the
  High"Court of Uttarakhand at Nainital in Criminal Appeal No.
C 176 of 2010.
        Kamini Jaiswal, Shilpi Dey, Krishna Tiwari for the
    Appellant.
         Abhishek Atrey, Babita Tyagi for the Respondent.
D
         The Judgment of the Court was delivered by
         C. NAGAPPAN, J. 1. Leave granted.
       2. This appeal is preferred against the judgment of the
E High Court of Uttarakhand at Nainital in Criminal Appeal No.176
  of 2010.
       3. The present appellant was appellant No.2 in Criminal
  Appeal No. 176 of 2010 and he along with appellant No.1
  therein Ganga Ram, was tried in Sessions Trial No.1 of 2008
F on the file of Sessions Judge, Pauri Garhwal for the alleged
  offence under Section 302 read with Section 34 IPC and they
  were found guilty of the charge and convicted and sentenced
  each to undergo imprisonment for life and to pay a fine of
  Rs.50,000/- each and in default to undergo imprisonment for 5
  years. Aggrieved by the conviction and sentence both the
G accused preferred appeal in Criminal Appeal No.176 of 2010
  and the High Court by judgment dated 9.7.2013 dismissed the
  appeal. Challenging the conviction and sentence appellant/
  accused No.2 Chetram has preferred the present appeal.
H        4. The case of the prosecution in brief is as follows: PW1
       CHETRAM v. STATE OF UTTARAKHAND                        73
               [C. NAGAPPAN, J.]
Dharam Singh and deceased Udairaj are sons of PW5 Sohan             A
Singh. Accused No.1 Ganga Ram is the son of Rampa!, the
brother of PW5 Schan Singh. Accused No.2 Chetram is
brother-in-law of Ganga Ram. Accused No.2 Chetram had
come to the house of Accused No.1 Ganga Ram about 10 days
prior to the occurrence. PW5 Sohan Singh's family was not in        B
talking terms with the family of accused No.1 Ganga Ram. On
4.9.2007 Dharam Singh and his brother Udairaj who are
residents of Meerapur Modiwala village had gone to New
Colony, Kalagarh and Udairaj was selling guavas on the side
of road near the motor-cycle mechanic shop and PW1 Dharam
Singh was selling guavas on other side of the road near the         C
bank. In the afternoon at 1.30 p.m. both the accused came
there and while accused No.2 Chetram caught hold of Udairaj,
accused No.1 Ganga Ram stabbed him with knife. On seeing
this PW1 Dharam Singh ran towards them and both the
accused fled away. PW2 Danwari Lal and PW3 Balwant saw              D
the accused persons fleeing away from the occurrence place.
Blood was oozing out from the injury on the left thigh of Udairaj
and PW1 Dharam Singh took him to the hospital but Udairaj
died on the way. PW1 Dharam Singh lodged the complaint in
writing at 2.20 p.m. in FIR Ka-1 in Police Station Kalagarh. On     E
the said complaint chickreport Ex.Ka-18 was prepared
registering the case under Section 302 IPC. Ex. Ka-7 is the
relevant entry in genral diary. Inquest was conducted in the
presence of Panchayatdars - and Ex. Ka-11 Inquest Report was
prepared and the body was sent for post-mortem. Blood
soaked earth and sample earth were taken from the occurrence        F
place under fx.Ka-17 and Ex.P-8 is the spot map.
    5. PW4 Dr. J.C. Dhyani conducted autopsy on the body
of Udai Raj at 3.00 p.m. on 5.9.2007 and found the following
ante-mortem injuries:
                                                                    G
    "(1) an elliptical shaped incised wound of the size 8 cm
    length x 4 cm width at 3 cm depth over middle part of front
    of left thigh, about 15 cm above left knee, the wound is
    reddish in colour, clotted blood present underling soft
    tissues, muscles and great vascular blood vessels are           H
    74        SUPREME COURT REPORTS              [2014] 4 S.C.R.

A        injured.
         (2) Another incised wound, elliptical shaped, of size 5 cm
         length x 1 cm width over back of the left elbow, the wound
         is superficial deep only."

B         He expressed opinion that death has occurred on account
    of shock and hemorrhage due to excessive bleeding as a result
    of ante-mortem injury No.1 and issued Ex.Ka-4 post-mortem
    certificate.

       6. The investigation officer seized blood stained trouser
C of deceased Udairaj under Ex.Ka-3 and sent the other articles
  for examination at the forensic laboratory. He also recovered
  the knife on 16.10.2007 under recovery Memo Ex. Ka-5. He
  completed the investigation and filed Ex.Ka-10 charge-sheet
  against both the accused.
D       7. In order to prove the case prosecution examined PW1
  to PW9 and marked the documents. No witness was examined
  on the side of the defence. The accused were questioned under
  Section 313 Cr. P.C. and their answers were recorded. The
  trial court found both the accused guilty of the charge and
E sentenced them as narrated above. Both the accused preferred
  appeal and the High Court dismissed the appeal by confirming
  the conv~tion and sentence imposed on them. Challenging the
  conviction and sentence appellant No.2/accused No.2 Chetram
  alone has preferred this appeal.
F        8. Ms. Kamini Jaiswal, learned counsel appearing on
    behalf of the appellant, would take us to the Fk,st Information
    Report as also the deposition of the complainant as PW-1,
    pointing out the improvements and inconsistencies contained
    therein. The learned counsel would contend that the
G complainant in his complaint as well as in his statement given
    before the Investigation Officer has not assigned any role to
    accused No.2 Chetram in the attack made on the deceased
  ,during the occurrence, whereas at the trial he has deposed that
   'accused No.2 Chetram caught hold of Udairaj while accused
H No.1 Ganga Ram inflicted stab injuries on him and no reliance
      CHETRAM v. STATE OF UTTARAKHAND                         75
              [C. NAGAPPAN, J.]
can be placed on the testimony of the said witness as regards       A
the involvement of the appellant herein in the occurrence. Per
contra the learned counsel appearing on behalf of the
respondent would contend that though discrepancy exist in the
testimony of the complainant vis-a-vis the FIR, there is no
reason to discard the evidence of the eye-witness who has           B
proved the prosecution case as against the appellant.
     9. The occurrence took place at about 1.30 p.m. on
4.9.2007 and the FIR came to be lodged at 2.20 p.m. on the
same day. The distance between the occurrence place and the
Police Station is said to be half a kilometer. The complainant      C
PW1 Dharam Singh is the brother of deceased Udairaj and he
alone has witnessed the occurrence. In his complaint FIR
Ex.Ka-1 he has stated as follows:
    "On 4.9.2007, we were selling Guavas on hand-carts in
    New Colony, Kalagarh. At that time Ganga Ram son of             D
    Rampal resident of Meerapur Modi who is son of my uncle
    (chacha} and one Chet Ram singh son of Ram Charan
    Singh who is resident of Kalaratan Pur, Pakwada, Police
    Station Moradabad, both of them had come to the
    Kalagarh market and Gangaram had stabbed my brother             E
    Udairaj with knife at 1.30 p.m. in the afternoon at New
    Colony Market, Kalagarh, and thereafter, they had fled
    away."
     10. In the above complaint no role was assigned to
accused No.2 Chetram in the attack made on Udairaj during           F
the occurrence. During investigation PW-1 Dharam Singh was
examined by investigation officer and in that statement also
PW1 Dharam Singh has not stated that accused No.2 Chetram
caught hold of his brother Udairaj during the occurrence. In fact
during cross examination PW1 Dharam Singh has admitted the          G
same.
     11. During trial, in his testimony as PW1, Dharam Chand
has stated that when he and Udairaj were selling guavas on
the road side, he saw both the accused surrounding his brother
Udairaj and accused No.2 Chetram had got hold of Udairaj and        H
    76       SUPREME COURT REPORTS                [2014] 4 S.C.R.


A accused No.1 Ganga Ram inflicted stab injuries on Udairaj
  with knife and when he ran towards them both the accused fled
  away. PW2 Banwari Lal and PW3 Balwant have not seen the
  occurrence but have witnessed accused persons fleeing away
  after the occurrence. Hence the solitary eye-witness to the
8 occurrence is PW1 Dharam Singh and his testimony in court
  is an improvement on the version given by him in the FIR in
  which he has not attributed any overt act to accused No.2
  Chetram in the attack made on Udairaj during the occurrence.
  Further, no role was assigned to accused No.2 Chetram by
  Dharam Singh in his statement given under Section 161
C Cr.P.C. before the Investigation Officer. For the first time in his
  deposition before the court he has come out with the version
  that accused No.2 Chetram caught hold of Udairaj while the
  attack was made by accused No.1 Ganga Ram on him during
  the occurrence. We have a lurking suspicion in our mind so far
D as the overt act of accused No.2 Chetram is concerned. It is
  difficult to place any reliance on the testimony of PW1 Dharam
  Singh as regards the involvement of the appellant herein in the
  incident.
       12. The fact situation bears great similarity to that in Anil
E Prakash Shukla vs. Arvind Shukla (2007) 9 SCC 513; ldrish
  Bhai Daudbhai vs. State of Gujarat (2005) 3 SCC 277; and
  Baital Singh v. State of U.P. (1990 Crl. L.J. 2091).
         13. Though the prosecution has established that Udairaj
F   died of homicidal violence by adducing medical evidence the
    involvement of the appellant Chetram in the said incident
    remains doubtful and the benefit of doubt has to be given to
    him in the circumstances stated above.
       14. In the result this appeal is allowed and the conviction
G and sentence imposed on the appellant Chetram/accused No.2
  are set aside and he is acquitted of the charge. He is directed
  to be released from the custody forthwith unless required
  otherwise.
    R.P.                                           Appeal allowed.